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Thursday, January 12, 2017

Can President Trump fire the DOJ inspector general without waiting thirty days after giving Congress a reason?

According to the Washington Post, Michael Horowitz, DOJ inspector general, has just announced that he will be conducting a "wide-ranging" investigation inyo "broad allegations of misconduct involving the FBI’s investigation of Hillary Clinton’s email practices and the bureau’s controversial decision shortly before the election to announce the probe had resumed."

Time, of course, is running out for such an inspection to be completed before Trump becomes President. But federal law seems to give Horowitz a little extra time to investigate even after Trump assumes office. Under the Inspector General Act of 1978, President Trump must "communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer." In theory, therefore, Horowitz has thirty days to investigate, using the substantial powers of his office, after Trump gives his reasons for removing Horowitz. (If President Obama's reason-giving under the IG Act is any precedent, those reasons need not be very detailed: When Obama fired Gerald Walpin, the IG for the Corporation for National and Community Service, Obama simply stated to Congress that he "lacked the fullest confidence" in Walpin). Although those reason-giving requirements seem pretty toothless, the 30-day warning seems to be a hard and fast statutory requirement, meaning that Horowitz gets his month to raise hell.

But is this 30-day advance warning consistent with the President's Article II powers to execute the laws? The OLC offered an opinion back in 1977 that the 30-day limit on the President's removal power was unconstitutional, and I am not sure that OLC was mistaken. In 2008, the House tried to protect the IGs' independence with even greater insulation from presidential control with H.R. 928, a bill that would have required good cause for IGs' removal, but the Senate deleted such insulation from the bill after the OMB argued that the for-cause provision would unconstitutionally intrude on presidential authority.

Given mushy precedents like Morrison v. Olson, the 30-day requirement might be constitutional even if a full-blown for-cause limit would violate Article II. But, looking at the big picture and putting petty doctrinal considerations aside, we can say one thing for sure:

The 30-day limit makes for great constitutional law final exam question.

Posted by Rick Hills on January 12, 2017 at 02:22 PM | Permalink


Heh, we gives judges lifetime tenure but limit them to actual cases and controversies presented to them. We give members of the executive the power to administrate (and prosecute) but limit them to that which is authorized by statute and make them accountable to an elected president. We give congress the power to craft the law any way they see fit but constitutionally enumerate the permitted goals, require bicameral majorities and veto survival, and enjoin them from delegating to entities other than the executive. Well, at least they are *supposed* to limit themselves to actual controversies, statute, and the Constitution, respectively. And we have "inferior" officers so the Senate doesn't have to confirm 10,000 executive appointments every year. (Ok, the Electoral College too, to complete the list.) Did I miss any? No one not fitting one of those descriptions can hold federal authority or public trust.

So where in this scheme is an IG whose removal by the president is impeded by statute? The DOJ-OIG is appointed by the president and confirmed by the Senate which belies the notion that he is an "inferior" officer in the sense used in Morrison v Olson. Certainly not a tenured judge or a legislator either.

And yeah, going after Comey for *complying* with Congressional inquiries about the status of the Hillarymail investigation is rather brazenly partisan and precisely the reason we give the electorally accountable president the power to fire such people.

Posted by: M. Rad. | Jan 13, 2017 12:43:54 AM

The utility of the position of inspector-general is contingent on a culture of professionalism and impartiality. We actually live in a society without credible referees, so the IGs are sbject to the anxiety that they're merely a manifestation of the interests of the permanent government and hence the Democratic Party. There may be straight-up IGs, but I'm not betting 10c that this chap is one. The law professoriate is as responsible as any subprofession for the loss of referees, btw.

Posted by: Art Deco | Jan 12, 2017 4:16:06 PM

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